Free Request for Judicial Notice - District Court of California - California

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RICHARD C. VASQUEZ /CA SB # 127228 AVIN P. SHARMA /CA SB# 233328 VASQUEZ BENISEK & LINDGREN LLP 3685 Mt. Diablo Blvd, Suite 300 Lafayette, CA 94549 Telephone: (925) 627-4250 Facsimile: (925) 403-0900 [email protected] [email protected] Attorneys for Defendant HITACHI HIGH TECHNOLOGIES AMERICA, INC., a Delaware Corporation UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

TA CHONG BANK LTD., Plaintiff, v.

Case No: C-08-02452-BZ DEFENDANT HITACHI HIGH TECHNOLOGIES AMERICA, INC'S REQUEST FOR JUDICIAL NOTICE

HITACHI HIGH TECHNOLOGIES Judge: The Honorable Bernard Zimmerman AMERICA, INC., a Delaware Corporation; and Date: July 2, 2008 DOES 1-10, inclusive, Time: 10:00 a.m. Dept: Ctrm G, 15th Floor Defendants.

HTA'S REQUEST FOR JUDICIAL NOTICE CASE NO: C08-02452-BZ

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Defendant Hitachi High Technologies America, Inc. ("HTA") respectfully requests that this Court take judicial notice of the following documents: 1. "Complaint For (1) Avoidance and Recovery of Preferential Transfers; (2) Determination of Extent, Validity and Priority of Lien; (3) Declaratory Relief; (4) Turnover and Accounting of Estate Property; and (5) Objection to Claim" filed in John Kendall v. Ta Chong Bank Co., LTD., Case No. 06-41544 J7 in the United States Bankruptcy Court for the Northern District of California. A true and correct copy of the document is attached hereto as Exhibit A. 2. Order on Ta Chong's Emergency Application for Extension of Time Re Trustee's Motion for Summary Judgment filed in John Kendall v. Ta Chong Bank Co., LTD., Case No. 06-41544 J7 in the United States Bankruptcy Court for the Northern District of California. A true and correct copy of the document is attached hereto as Exhibit B. 3. Order Granting Motion for Summary Adjudication filed in John Kendall v. Ta Chong Bank Co., LTD., Case No. 06-41544 J7 in the United States Bankruptcy Court for the Northern District of California. A true and correct copy of the document is attached hereto as Exhibit C.

Fed. R. Evid. Rule 201 allows a court to take judicial notice of facts that are not subject to reasonable dispute because they are "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. Rule 201. A court may take judicial notice of matters of public records. Moore v. Navarro, No. 00-03213 MMC, 2004 U.S. Dist. LEXIS 6039, *6, (N.D.Cal April 5, 2004). Documents filed in other legal proceedings are matters of public records subject to judicial notice. Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1388, fn. 9 (9th Cir. 1987) (Court took judicial notice of pleadings and orders "in the underlying bankruptcy case."); see Shropshire v. Fred Rappoport Co., 294 F. Supp. 2d 1085, 1090-91, fn.1 (N.D. Cal 2003) [court took judicial notice of pleadings filed in state court]. 1
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Here, each of the documents are documents subject to judicial notice as the complaint is a pleading filed in the public record for a bankruptcy proceeding in this district, and the orders are orders issued by the bankruptcy court and thus part of the public record for the same bankruptcy proceeding. Accordingly, HTA respectfully requests this Court to grant judicial notice of the above listed documents. DATED: May 20, 2008 VASQUEZ BENISEK & LINDGREN LLP

By: ______________/s/____________________ RICHARD C. VASQUEZ Attorneys for Defendant HITACHI HIGH TECHNOLOGIES AMERICA, INC., a Delaware Corporation

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Aron M. Oliner (SBN: 152373) Geoffrey A. Heaton (SBN: 206990) DUANE MORRIS LLP One Market Plaza Spear Street Tower, Suite 2000 San Francisco, California 94105-1104 Telephone: (415) 957-3000 Facsimile: (415) 957-3001 Email: [email protected] Attorneys for Chapter 7 Trustee JOHN T. KENDALL UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

In re CYBERHOME ENTERTAINMENT, INC., Debtor.

Case No. 06-41544 J7 Chapter 7

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JOHN T. KENDALL, Trustee, Plaintiff, v. TA CHONG BANK CO., LTD., Defendant.

A.P. No. COMPLAINT FOR (1) AVOIDANCE AND RECOVERY OF PREFERENTIAL TRANSFERS; (2) DETERMINATION OF EXTENT, VALIDITY AND PRIORITY OF LIEN; (3) DECLARATORY RELIEF; (4) TURNOVER AND ACCOUNTING OF ESTATE PROPERTY; AND (5) OBJECTION TO CLAIM

John T. Kendall, Chapter 7 trustee, alleges: JURISDICTIONAL ALLEGATIONS 1. This is an adversary proceeding brought pursuant to Federal Rule of Bankruptcy

Procedure ("Fed. R. Bankr. P.") 7001 et seq.; 11 U.S.C. §§ 502(d), 542, 547, and 550; and 28 U.S.C. § 2201. 2.
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This Court has jurisdiction pursuant to 28 U.S.C. §§ 1334, 157 and 151. 1
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3. 4.

Venue is proper pursuant to 28 U.S.C. § 1409. This adversary proceeding is a core proceeding as that term is defined at 28 U.S.C.

§ 157(b)(2)(A), (B), (E), (F), (K) and (O). 5. This Court may enter a final judgment herein, subject to review by the United

States District Court under 28 U.S.C. § 158. GENERAL ALLEGATIONS 6. On or about September 5, 2006 (the "Petition Date"), Cyberhome Entertainment,

Inc. ("Debtor") filed a voluntary petition under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of California, Oakland Division (the "Bankruptcy Court"). 7. Plaintiff John T. Kendall ("Trustee") is the duly appointed, qualified and acting

Chapter 7 trustee of the Debtor's bankruptcy estate (the "Estate"). 8. The Trustee is informed and believes, and based thereon alleges, that defendant Ta

Chong Bank Co., Ltd. ("Defendant") is, and at all times relevant was, a corporation and/or banking entity organized under the laws of Taiwan, R.O.C., doing business in the State of California. 9. Defendant contends that prior to the Petition Date it entered into one or more

security agreements (collectively, the "Alleged Security Agreement") with the Debtor by which Defendant allegedly acquired a blanket security interest (the "Alleged Security Interest") in substantially all of the Debtor's assets, including, inter alia, the Debtor's accounts receivable. 10. Within 90 days prior to the Petition Date, Defendant filed a UCC 1 financing

statement with the California Secretary of State with respect to the Debtor, listing as Defendant's collateral, inter alia, the Debtor's accounts receivable. 11. Defendant contends that prior to the Petition Date it entered into one or more

factoring agreements with the Debtor (collectively, the "Alleged Factoring Agreement") by which Defendant purports to have purchased certain of the Debtor's accounts receivable. 12. The Trustee is informed and believes that Defendant has made demand on the

Debtor's account debtors for payment of the Debtor's outstanding accounts receivable. DM3\418203.3 2
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13.

The Trustee is informed and believes that, as a result of Defendant's unauthorized

collection activities, Defendant may be in possession of funds that are property of the Estate in an amount to be determined according to proof. FIRST CLAIM FOR RELIEF (Avoidance of Preferential Transfers) [11 U.S.C. § 547] 14. The Trustee incorporates by this reference and realleges each of the foregoing

paragraphs of this complaint (the "Complaint"). 15. Through the Alleged Security Interest and Alleged Factoring Agreement, to the

extent either exists, the Debtor made one or more transfers of an interest in its property (collectively, the "Transfers"). 16. 17. The Transfers were made to or for the benefit of Defendant. The Transfers were made for or on account of an antecedent debt owed by the

Debtor to Defendant before the Transfers was made. 18. 19. 20. The Transfers were made while the Debtor was insolvent. The Transfers were made on or within 90 days before the Petition Date. The Transfers enabled Defendant to receive more than it would receive if the

Estate were liquidated under Chapter 7 of Title 11 of the United States Code, the Transfers had not been made, and Defendant received payment of such debt to the extent provided by the provisions of the United States Bankruptcy Code. 21. Accordingly, the Trustee may avoid the Transfers pursuant to 11 U.S.C. § 547(b).

WHEREFORE, the Trustee prays for judgment as hereinafter set forth. SECOND CLAIM FOR RELIEF (Recovery of Avoided Preferential Transfers) [11 U.S.C. § 550] 22. The Trustee incorporates by this reference and realleges each of the foregoing

paragraphs of this Complaint. 23. The Trustee may avoid any transfers of the Debtor's accounts receivable made to

Defendant under the Alleged Factoring Agreement pursuant to 11 U.S.C. § 547(b).

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24.

Accordingly, the Trustee may recover from Defendant the value of the Debtor's

accounts receivable transferred to Defendant, as such amount is determined according to proof, for the benefit of the Debtor's bankruptcy estate pursuant to 11 U.S.C. § 550(a). WHEREFORE, the Trustee prays for judgment as hereinafter set forth. THIRD CLAIM FOR RELIEF (Declaratory Relief; Determination of Extent, Validity and Priority of Lien) [28 U.S.C. § 2201(a)] 25. The Trustee incorporates by this reference and realleges each of the foregoing

paragraphs of this Complaint. 26. An actual controversy exists between Defendant and the Trustee in that Defendant

contends, and the Trustee denies, that Defendant has an unavoidable, perfected security interest in property of the Estate. 27. Pursuant to 28 U.S.C. § 2201(a), the Trustee is entitled to entry of judgment from

the Bankruptcy Court declaring and determining the extent to which Defendant holds an unavoidable, perfected security interest in property of the Estate. WHEREFORE, the Trustee prays for judgment as hereinafter set forth. FOURTH CLAIM FOR RELIEF (Declaratory Relief to Determine Nature of Alleged Factoring Agreement) [28 U.S.C. § 2201(a)] 28. The Trustee incorporates by this reference and realleges each of the foregoing

paragraphs of this Complaint. 29. An actual controversy exists between Defendant and the Trustee in that Defendant

contends, and the Trustee denies, that the Alleged Factoring Agreement, to the extent it exists, constitutes an actual sale of any of the Debtor's accounts receivable. 30. Pursuant to 28 U.S.C. § 2201(a), the Trustee is entitled to entry of judgment from

the Bankruptcy Court declaring and determining whether, and if so to what extent, the Alleged Factoring Agreement constitutes an actual sale of the Debtor's accounts receivable. WHEREFORE, the Trustee prays for judgment as hereinafter set forth.

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FIFTH CLAIM FOR RELIEF (Turnover and Accounting of Estate Property) [11 U.S.C. § 542(a)] 31. The Trustee incorporates by this reference and realleges each of the foregoing

paragraphs of this Complaint. 32. The Trustee is informed and believes that, as a result of Defendant's unauthorized

collection activities, Defendant may be a non-custodian in possession, custody and/or control of property of the Estate that (a) the Trustee may use pursuant to 11 U.S.C. § 363, and (b) is not of inconsequential value or benefit to the Trustee. 33. Pursuant to 11 U.S.C. § 542(a), Defendant is obligated to turn over to the Trustee,

and provide an accounting of, any and all property of the Estate that Defendant has recovered from the Debtor's account debtors or from any other source. WHEREFORE, the Trustee prays for judgment as hereinafter set forth. SIXTH CLAIM FOR RELIEF (Objection to Claim) [11 U.S.C. § 502(d)] 34. The Trustee incorporates by this reference and realleges each of the foregoing

paragraphs of this Complaint. 35. The Trustee is informed and believes, and based thereon alleges, that Defendant

intends to file a proof of claim in the Debtor's bankruptcy case. 36. Each and every claim of Defendant herein should be disallowed to the extent that

Defendant has not turned over to the Trustee any property of the Estate in Defendant's possession, custody or control pursuant to 11 U.S.C. § 542(a), or the value of any property transferred to Defendant in violation of 11 U.S.C. § 547, but without limitation as to any and all other grounds of disallowance not presently known to the Trustee that may be established according to proof. WHEREFORE, the Trustee prays for the following relief:

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PRAYER FIRST CLAIM FOR RELIEF 37. For entry of judgment avoiding the Transfers, including the Alleged Security

Interest and Alleged Factoring Agreement, pursuant to 11 U.S.C. § 547(b); SECOND CLAIM FOR RELIEF 38. For judgment in a sum corresponding to the total value of the Debtor's accounts

receivable transferred to Defendant under the Alleged Factoring Agreement, as such amount is determined according to proof; 39. For an order directing payment thereof by Defendant to the Trustee; THIRD CLAIM FOR RELIEF 40. For entry of judgment determining the extent, validity and priority of the Alleged

Security Interest. FOURTH CLAIM FOR RELIEF 41. For entry of judgment determining whether, and if so to what extent, the Alleged

Factoring Agreement constitutes an actual sale of the Debtor's accounts receivable to Defendant. FIFTH CLAIM FOR RELIEF 42. For entry of judgment directing Defendant to turn over immediately to the Trustee,

and provide an accounting of, any and all property of the Estate that Defendant has collected from the Debtor's account debtors, or that is otherwise in Defendant's possession, custody or control. SIXTH CLAIM FOR RELIEF 43. For entry of judgment disallowing any and all of Defendant's claim(s) herein until

any and all property of the Estate in Defendant's possession, custody or control has been accounted for and turned over to the Trustee, and/or the value of any property of the Estate transferred to Defendant in violation of 11 U.S.C. § 547 has been remitted to the Trustee; /// /// /// ///
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FOR ALL CLAIMS FOR RELIEF 44. 45. For all costs of suit incurred herein; and For such other and further relief as the Court deems proper. DUANE MORRIS LLP By: /s/ Geoffrey A. Heaton (#206990) Geoffrey A. Heaton Attorneys for Plaintiff and Chapter 7 Trustee JOHN T. KENDALL

DATED: December 19, 2006

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GLORIA L. FRANKLIN, CLERK U.S BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA

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Aron M. Oliner (SBN: 152373) Geoffrey A. Heaton (SBN: 206990) DUANE MORRIS LLP One Market Plaza Spear Street Tower, Suite 2000 San Francisco, CA 94105-1104 Telephone: (415) 957-3000 Facsimile: (415) 957-3001 Email: [email protected]

Signed: June 13, 2007

________________________________________ EDWARD D. JELLEN U.S. Bankruptcy Judge

________________________________________

Attorneys for Plaintiff, Counterdefendant and Chapter 7 Trustee, JOHN T. KENDALL

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION In re CYBERHOME ENTERTAINMENT, INC., Debtor. Case No. 06-41544 Chapter 7

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JOHN T. KENDALL, Trustee, Plaintiff, v. TA CHONG BANK CO., LTD., Defendant. TA CHONG BANK CO., LTD., Counterclaimant, v. JOHN T. KENDALL, Trustee, Counterdefendant.

Adversary Proceeding No. 06-04282 ORDER ON TA CHONG'S EMERGENCY APPLICATION FOR EXTENSION OF TIME RE TRUSTEE'S MOTION FOR SUMMARY JUDGMENT

Date: Time: Place:

June 4, 2007 2:00 p.m. Courtroom of The Honorable Edward D. Jellen

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Defendant Ta Chong Bank Co., Ltd ("Ta Chong") having filed its Application for Extension of Time and Vacating of Motion Hearing Date ("Emergency Application") on May 25, 2007, John Kendall, Chapter 7 trustee and plaintiff herein ("Trustee") having filed opposition on the same date ("Opposition"), Lee Goldberg appearing specially on behalf of Ta Chong, Aron M.

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Oliner, Duane Morris LLP, appearing on behalf of Trustee, the Court having read and considered the Emergency Application and Opposition, having heard argument, and for good cause, now makes the following order: IT IS HEREBY ORDERED: 1. The Trustee's Motion for Summary Judgment ("MSJ"), scheduled for June 11,

2007, at 11:00 a.m., is continued to August 6, 2007, at 10:00 a.m.; Any opposition to the MSJ must be served and filed no later than July 23, 2007; The Trustee may serve and file a reply on or before August 2, 2007; In addition to the hearing on the MSJ on August 6, 2007, the Court orders Ta

3. 4.

Chong to show cause why the answer it has filed was not filed in bad faith, and is in compliance with Federal Rule of Bankruptcy Procedure 9011. Ta Chong shall file a response regarding this specific issue on or before August 2, 2007; 5. The Trustee is authorized to collect all of the receivables at issue in this Adversary

Proceeding, regardless of whether Ta Chong is perfected, unperfected, or has been assigned the same; 6. The Trustee will hold any and all proceeds therefrom in a segregated, interest

bearing account at a depository, and the account number and name of the depository shall be provided to Mr. Goldberg, and whomever else Ta Chong designates, who shall have full access to information about said account;

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7.

The Trustee's right under Bankruptcy Code section 506(c), and any other

applicable rights, shall be fully preserved, without prejudice to any arguments on behalf of Ta Chong to contest the same. In addition, the Trustee is authorized to compromise any disputed receivable in good faith, though the Trustee shall make a good faith effort to consult with

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Mr. Goldberg, or any other counsel Ta Chong designates, before entering into any such compromise; 8. The Court having been advised that Ta Chong or its representatives may have sent

letters or communications to certain account debtors, now rules that any recipient of such a letter regarding the receivables at issue in this Adversary Proceeding may disregard it, as only the Trustee is authorized to collect the receivables at this time.

APPROVED AS TO FORM AND CONTENT:

/s/ Lee R. Goldberg (125706) LEE R. GOLDBERG, Specially Appearing For Cedric T. Chou Attorneys for Ta Chong Bank Co., Ltd.

***END OF ORDER***

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COURT SERVICE LIST

Lee Goldberg c/o Julian Baum Baum & Weems 9 Tenaya Lane Novato, CA 94947-4314 Lee R. Goldberg Law Offices of Lee R. Goldberg 23272 Mill Creek Drive, Suite 360-W Laguna Hills, CA 92653-1641 Charles Novack Law Office of Charles Novack 409 Thirteenth Street, 10th floor Oakland, CA 94612-2607 Aron M. Oliner Duane Morris LLP One Market Plaza Spear Street Tower, Suite 2000 San Francisco, CA 94105-1104

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Aron M. Oliner (SBN: 152373) Geoffrey A. Heaton (SBN: 206990) DUANE MORRIS LLP One Market Plaza Spear Street Tower, Suite 2000 San Francisco, CA 94105-1104 Telephone: (415) 957-3000 Facsimile: (415) 957-3001 Email: [email protected]

Signed: August 10, 2007

________________________________________ EDWARD D. JELLEN U.S. Bankruptcy Judge

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Attorneys for Plaintiff, Counterdefendant and Chapter 7 Trustee, JOHN T. KENDALL

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION In re CYBERHOME ENTERTAINMENT, INC., Debtor. JOHN T. KENDALL, Trustee, Plaintiff, v. TA CHONG BANK CO., LTD., Defendant. TA CHONG BANK CO., LTD., Counterclaimant, v. JOHN T. KENDALL, Trustee, Counterdefendant. Date: Time: Place: August 6, 2007 10:00 a.m. Courtroom of The Honorable Edward D. Jellen Adversary Proceeding No. 06-04282 ORDER GRANTING MOTION FOR SUMMARY ADJUDICATION Case No. 06-41544 Chapter 7

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The matter having come for hearing on August 6, 2007, at 10:00 a.m., before The Honorable Edward D. Jellen, Aron M. Oliner, Duane Morris LLP appearing on behalf of Plaintiff John T. Kendall ("Plaintiff"), James S. Monroe, Nixon Peabody LLP appearing on behalf of Ta Chong Bank Co., Ltd. ("Defendant"), the Court having read and considered the Motion, and having received the Notice of Non-Opposition filed on behalf of Defendant on or about August 3, 2007, now makes the following order: 1. 2. Plaintiff's Motion for Summary Adjudication is granted; Defendant's security interest in the Debtor's receivables and inventory and

proceeds is unperfected; 3. Defendant's unperfected security interest in the Debtor's receivables and inventory

and proceeds is avoided by operation of law; and 4. Defendant holds no lien whatsoever on any receivables and inventory and

proceeds of the Debtor's bankruptcy estate.

NIXON PEABODY LLP /s/ James S. Monroe (102328) JAMES S. MONROE Attorneys for Ta Chong Bank Co., Ltd., Defendant

***END OF ORDER***

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COURT SERVICE LIST

United States Trustee, Region 17 United States Department of Justice 1301 Clay Street, Suite 690N Oakland, CA 94612-5217 James S. Monroe Nixon Peabody LLP One Embarcadero Center, 18th Floor San Francisco, CA 94111-3600 Aron M. Oliner Duane Morris LLP One Market Plaza Spear Street Tower, Suite 2000 San Francisco, CA 94105-1104

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